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R. B. Forbes, for damages caused by collision between the schooner Eliza, owned by the libellants, and the Romance of the Seas, a ship of about 1600 tons, towed by the steamer and lashed to the steamer's side. The steamer is a tow-boat of about 350 horse power. The schooner was lumber-laden, and was beating up Boston harbor on the evening of June 4, and the collision took place about ten o'clock, somewhere between Long Island Light and the “ Castle.

I. The first question that arises is :- Whether the steamer is, in any event, liable ?

It is contended, in the defence, that the steamer was the mere motive power; that she was the servant of the ship; that the whole control of both ship and steamer was in the owner of the ship; and therefore, that the ship, or her owners, are alone liable.

It is to be observed, in the first place, that the ship had no motive power of her own. Her sails were furled, and whatever motion she had was imparted to her by the steamer. The only separate motion the ship could have would be such lateral motion as might result from a change of her rudder. The ship and the steamer were so lashed together as to constitute one combined moving mass, whose momentum was the result of the steamer's motive power acting upon the aggregate bulk and weight of both ship and steamer. And such being the fact, I must conclude that the steamer had the control of the ship; and if there was negligence in the present collision, the steamer must be held liable.

The fact that the steamer was hired for the service of towage, can make no difference. This is a proceeding in rem, and not in personam. Generally speaking, in a proceeding in rem, no regard is had to the owners, as such. One chief benefit of such a proceeding is, that the law puts its hand on the offending thing, and without any regard to the matter of ownership, gives a remedy in favor of the injured party, against the vessel itself which has caused the damage.

It is not necessary, in this case, to decide whether the ship is also liable. That is another matter, and is not now before me for consideration.

It has been contended that the steamer was under the control of the officers, or the pilot, of the ship. But if such were the fact, it would not exonerate the steamer, nor affect her liability as to third persons. But the fact of such control is not proved. The testimony of both the captain and mate of the steamer show that the orders, at and about the time of the collision, were given, chiefly, by the officers of the steamer. It did not appear that the master of the ship took any part in the direction at that time.

II. It is contended on the evidence, (1), That the fault was on the part of the schooner; or, (2), That the accident was inevitable.

As to the latter it must be a very extraordinary state of circumstances that could make the accident inevitable. The more intelligent witnesses, on both sides, testify that the night was slightly overcast, with stars appearing here and there, and that the schooner could be seen at a considerable distance, — far enough to have been avoided with due precaution. Several of the witnesses for the defence, it is true, say that the night was very dark. But if it was so dark that the schooner could not be seen, then it was not a night for such a large ship and so powerful a steamer to have left the wharf at all to go down the harbor, where vessels are very numerous, both outward and inward bound. In either view it is clearly not a case of inevitable accident.

Where, then, was the fault? So far as a look-out is concerned, I am satisfied that the ship and steamer had a good look-out both in numbers and character. And it is also testified that the schooner had a good look-out. The witnesses for the libellants also say that, when the ship and steamer were half a mile off, a light was taken from the schooner's binnacle and shown, in full view, until the collision was inevitable.

Now there is no imperative rule that a sailing vessel must show a light. Yet if a schooner in the night time, going where steamers may be expected to be met, fails to show a light, she ought not to recover for damages done by collision with a steamer, if the steamer keeps a good look-out and uses reasonable exertions to prevent a collision. It becomes therefore important to inquire whether a light was shown by the schooner. There were four persons on the deck of the schooner, and they all say that a light was shown in a conspicuous place above the deck load, and state all the attending circumstances. One or two persons also on board the ship say they saw a light just before the collision. But a large number of those on the look-out on board the ship and steamer say they did

not see any light, though they think they should have seen it, if one had been shown.

I am satisfied that a light was exhibited by the schooner, and that it ought to have been seen. But why was it not seen? Simply, in my judgment, because the lights on the ship and steamer were unskilfully placed. According to the testimony of the witnesses for the defence, large lights were placed in the rigging near the bows of the ship, directly in the line of vision of those on the look-out. Here was the fault. And this will account for another fact already alluded to, namely, that some of the witnesses, those on the look-out, stated that the night seemed to them very dark, and that they could see only a short distance ahead. There was a want of skill in the arrangement of the lights. Indeed, according to the defendants' own witnesses, it is pretty clear that the lights were so arranged as effectually to prevent a view directly ahead.

And here, I think, we may see the reason of the disagreement in the testimony about the position of the vessels when they came together. All the witnesses on board the ship and steamer say that when they first saw. the schooner she was lying across the ship's bows; that she appeared to be just going in stays; and that the ship struck her bowsprit at a right angle with the ship's keel. All those on board the schooner say that she did not go in stays, but was close hauled on the wind, and that the vessels came together nearly “head on," or at an angle of only one or two points. From an inspection of the bowsprit, a part of which has been brought into court, I am satisfied that the first blow must have been made by a vessel approaching from nearly an opposite direction, and not at a right angle. And the sudden and near appearance of the schooner, as testified to by the witnesses for the defence, still farther confirms the belief that she was not seen until the projecting jib-boom of the ship had begun to press her round, and give her the appearance of going in stays under the ship's bow.

It has been contended, that, inasmuch as the schooner saw the steamer a mile off, that the schooner should have kept clear of the steamer. But it has been laid down as a rule in this court that a sailing vessel is to keep on her course, and it is the duty of the steamer to avoid her. The schooner had a right to believe and to act upon the belief that the steamer would diverge at the proper time and go clear of the schooner. If the schooner had di

verged, and in consequence thereof had come in collision with the steamer, or ship, the schooner would have been in fault.

I am, therefore, of opinion that the schooner did show a light, and did not alter her course before the collision, and was not in fault, but that there was fault on the part of those in charge of the steamer and ship, and that the steamer is liable for the damages resulting from the collision. Decree for the 'libellants.

Charles E. Pike, for libellants.
H. F. Durant and M. Dyer, Jr., for claimants.

November, 1856.

GEORGE P. BEARSE v. WM. ROPES ET AL.

Where goods are received on board a vessel, in good order, to be trans

ported from one port to another, and no stress of weather is shown, the burden of proof is upon the ship-owner to establish a peril of the seas.

The facts are sufficiently stated in the opinion of the court.

SPRAGUE, J. — This is a libel for freight of a quantity of hemp and iron from New York to Boston in the schooner Granite State. There is no question that the freight was earned. The defence is, that the hemp was damaged on. the voyage by oil and sea water. of the fact of such damage there is no doubt, and that it exceeded the amount of the freight; the only question is, whether the carrier ought to be held liable therefor. The master of the schooner signed a bill of lading in New York in the usual form, acknowledging the receipt of the goods on board in good order, and promising to deliver them in like good order to the consignees in Boston, danger of the seas only excepted. It is not contended that the deterioration of the hemp in this case arose from the nature or character of the article itself, that is, from any inherent quality or principle, but the damage arose entirely from its coming in contact with oil and sea water, in the hold of the vessel. The bill of lading contains a contract in writing. There being no doubt that the hemp was received on board in good order, and no suggestion of any inherent defect or

decay, the only question is, whether the damage was occasioned by the danger of the seas. It is insisted, indeed, on behalf of the carrier, that if he took the usual care and precautions, and conveyed these goods in the usual manner, he is not responsible for damage, whether arising from the danger of the seas or otherwise. To this I cannot accede. In order to exonerate himself from liability, he must bring himself within the exceptions of the bill of lading, and show that the damage arose from the danger of the seas.

It appears that part of the hemp was stowed in the after-part of the vessel upon other cargo, and this received no injury. The hemp which suffered was in the forward part of the vessel. On the one hand it is insisted that the damage to this arose from the perils of the sea; on the other, that it was occasioned by improper stowage or some want of reasonable care or skill on the part of the carrier. The schooner was put up in New York for freight for Boston, and after filling up, she sailed during the latter part of June, and arrived in Boston carly in July. Nothing unusual occurred on the passage; she met with no accident, no bad weather, and encountered no unusual wind or waves. The ship's company consisted of seven persons, and of these the testimony only of one seaman is produced. He says that in coming round the Cape the vessel careened, and the master for that reason took in sail, but he does not say to what extent, and the taking in sail is one of the ordinary occurrences of a sea voyage. And he says in express terms there was nothing extraordinary or unusual in the passage from New York.

In such a passage in summer, with no bad weather and no bad sea, and with only so much wind as to cause them once to shorten sail, it would seem that such an article as hemp ought not to have suffered damage on board a seaworthy vessel, if properly cared for.

As to that part of the damage which was occasioned by oil, a considerable quantity of oil in forty gallon casks was in the hold of this vessel, but not within twenty feet of the hemp; about one hundred and twenty gallons leaked out, and with the water in the hold came in contact with the hemp. There is nothing whatever to show that this leakage was occasioned by danger of the seas. The cooper at Boston testified that the hoops were loose on two-thirds or three-fourths of the casks, and he is of opinion that they could not have been in good order when taken on board. From one of the casks all the oil had escaped except five

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